Sully and Sully (No. 2)

FAMILY COURT OF AUSTRALIA

SULLY & SULLY (NO. 2)

[2017] FamCA 1025

FAMILY LAW – CHILDREN – weight to be accorded views – importance of keeping siblings together – little distinction between the parties – equal time versus eight / six division of time

Morgan & Miles (2007) FLC 93-343

Family Law Act 1975 (Cth) – ss 60B, 60CA, 60CC, 65DAA

APPLICANT:

Mr Sully

RESPONDENT:

Ms Sully

INDEPENDENT CHILDREN’S LAWYER:

Mary Lonergan

FILE NUMBER:

MLC

2232

2016

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Melbourne

JUDGMENT OF:

Gill J

HEARING DATE:

20-26 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick, QC assisted by Mr Puckey

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr North, QC, assisted by Mr Werner

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Whitchurch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The Independent Children’s Lawyer is discharged.
The parties are to pay one half each of the Independent Children’s Lawyer’s costs of and incidental to the parenting proceedings.
All previous parenting orders are discharged.
The Father and the Mother have equal shared parental responsibility for J (“J”) born … 2001, Q (“Q”) born … 2003, N (“N”) born … 2005, and O (“O”) born … 2007
J will live with the father and live with the mother in accordance with his wishes.
The children Q, N, and O (“the children”), will live with the parties during school terms as follows:
a.with the Mother for six (6) consecutive nights from after school Tuesday to the commencement of school on Monday morning, or Tuesday morning should Monday be a public holiday, commencing 14 March 2017; and
b.with the Father for the balance of the time.
For the purposes of Order 6 above, if the children were with the mother in the last week of the school holidays, their time with the mother will commence on the second week of term and if the children were with the father in the last week of the school holidays their time with their mother will commence the first week of term.
During school holiday periods the children will live with the father and the mother as follows:
8.1For one half of the first school term holidays:
8.1.1With the wife:
8.1.1.1For the first half in 2018 and in each alternate year thereafter commencing from the conclusion of school on the last day of Term 1 until 12 noon on the day which is the midpoint of the school holiday period;
8.1.1.2For the second half in 2019 and in each alternate year thereafter commencing from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 2;
8.1.2With the husband:
8.1.2.1For the second half in 2018 and in each alternate year thereafter commencing from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 2;
8.1.2.2For the first half in 2019 and in each alternate year thereafter commencing from the conclusion of school on the last day of Term 1 until 12 noon on the day which is the midpoint of the school holiday period.
And for the purposes of this order, where there are an even number of days during the school holiday period and because of that there are two days at the midpoint of the holidays, the first of the two days shall be taken to be the midpoint.
8.2During the entirety of the second term school holiday period commencing from the conclusion of school on the last day of Term 2 until the commencement of school on the first day of Term 3;
8.2.1With the wife in 2018 and each alternate year thereafter;
8.2.2With the husband in 2019 and each alternate year thereafter;
8.3During the entirety of the third term school holiday period commencing from the conclusion of school on the last day of Term 3 until the commencement of school on the first day of Term 4;
8.3.1With the husband in 2018 and each alternate year thereafter;
8.3.2With the wife in 2019 and each alternate year thereafter;
8.4For one half of the long summer school holiday period:
8.4.1With the husband:
8.4.1.1For the first half in 2017/18 and each alternate year thereafter, from the conclusion of school on the last day of Term 4 until 12 noon on the day which is the midpoint of the second holiday period;
8.4.1.2For the second half in 2018/19 and in each alternate year thereafter, from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 1;
8.4.2With the wife:
8.4.2.1For the second half in 2017/18 and in each alternate year thereafter, from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 1;
8.4.2.2For the first half in 2018/19 and each alternate year thereafter, from the conclusion of school on the last day of Term 4 until 12 noon on the day which is the midpoint of the second holiday period;
And for the purposes of this order, where there are an even number of days during the school holiday period and because of that there are two days at the midpoint of the holidays, the first of the two days shall be taken to be the midpoint.
While the children are in their respective care, each of the husband and the wife do all things to facilitate reasonable communication between the children and the parent with whom they are not spending time with via telephone, messaging or other electronic means as initiated by any of the children or the parent.
Unless otherwise agreed, changeovers occur:
10.1At the children’s respective schools during school term;
10.2If not at school, by the parent (or their nominee) whose time is commencing, collecting the children from the home of the other parent and returning them to the home of the other parent at the conclusion thereof.
Each parent be at liberty, during their scheduled time with the children in school holiday periods, to travel overseas with them, subject to the following conditions (unless otherwise agreed in writing):
11.1The parent who intends to travel with the children (“the travelling parent”) provide to the other parent copies of itineraries and accommodation bookings no less than 30 days prior to the departure date (or such shorter date as may be agreed between the parents);
11.2The travelling parent not be permitted to travel with children (save while in transit) to any location designated by the Department of Foreign Affairs and Trade as “do not travel”; and
11.3The travelling parent ensure the children are able to communicate with the other parent via telephone, electronic messaging or video calls during the period of such travel, provided there is serve available for them to do so.
Each party inform the other parent:
12.1of their current address, mobile telephone number and email address within 7 days of changes to any of these, including contact details for any holidays;
12.2via telephone as soon as is reasonably practicable in the event any of the children become seriously ill or sustain a serious injury requiring medical attention while the children are in that party’s care;
12.3as to any consultation with a medical practitioner or health professional and treatment prescribed within 24 hours of such consultation;
12.4as to the names and contact details of all medical practitioners and health professionals treating or consulting any of the children from time to time.
The passports for J, Q, N, and O be held by the Registrar of this Court and released to either the husband or the wife from time to time in accordance with written instructions signed by the husband and the wife.
At the conclusion of travel with the children by the travelling parent, the travelling parent forthwith return the children’s passports to the Registrar of the Family Court of Australia at Melbourne to be held in accordance with Order 11 hereof.
Each parent in a timely manner do all things and sign all documents as may be required to apply for, maintain and renew the children’s Australian passports, the costs of which are to be borne by the husband.
The parties are at liberty to vary the arrangements in these orders by agreement in writing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sully & Sully (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2232 of 2016

Mr Sully

Applicant

And

Ms Sully

Respondent

REASONS FOR JUDGMENT

introduction

The parents were in a relationship from 1996 until December 2015. They have four children, J aged 16, Q, aged 14, N, aged 12, and O, aged 10 (the boys). During the relationship the mother had the primary responsibility for the care of the children. Immediately post separation it was the father who had this role, with the mother at that stage having only restricted time with the boys. In March 2016 consent orders were entered that provided for the youngest three boys to be with the mother from the conclusion of school on the Friday to the commencement of school on the Monday in the first week, and from 5pm on Sunday until the commencement of school on Wednesday in the second week.
These orders were varied in March 2017, so that the youngest three then spent six consecutive nights from after school Tuesday to the commencement of school on Monday morning, being in the care of the father for the balance of the time.
As at the time of the hearing, in November 2017, the arrangements were that J live with each parent as he chooses, with Q, N and O living with the father eight nights per fortnight and with the mother six nights per fortnight in accordance with orders of 9 March 2017.
At the end of the hearing, the width of the dispute was whether Q, N and O will live with their father eight nights per fortnight and the mother six nights per fortnight, on the father’s case, or in accordance with the mother’s case with the father seven nights per fortnight and with the mother seven nights per fortnight.
The parents agreed, in particular, to give Q flexibility.
The corollary of these positions was that this was not a case in which risk of harm to the children was a factor, nor an inadequate ability to parent, nor a deficit in the parent/child relationships such as to mean that such substantial arrangements would not be in the children’s best interests. It was the position of each of the parties that all of the children could live with the other for a substantial part of each fortnight. The difference in the arrangements proposed by the parties fell to be justified in a different manner.
A matter of dispute between the parties at the commencement of the hearing was as to whether the orders should be expressed that the children live with one parent and spend time with the other or, that the children live with each of the parents. The father’s orders sought expressed the matter in the former manner. Under cross-examination he said that he had no opposition to the orders being expressed on a live with / live with basis. The mother said that the importance of this matter was her concern as to how the children might perceive the orders and what the orders would reveal about each of the parents. She was concerned that if they were expressed in the former manner that she would be consigned to a second-class parenting role and that the children would be aware of this. This same factor forms part of her reason for why 7/7 orders should be made, so that there can be no interpretation made that one parent is somehow inferior to the other in the eyes of the children.
The Independent Children’s Lawyer’s (ICL) position was that the 8:6 arrangement should continue for the younger three children.
The parties also disagreed over the preferred machinery provision in relation to the first school holiday in 2018, with the father’s proposed order providing that:
Notwithstanding orders 4.1.1 and 4.1.2 hereof, where the children are unable to spend an equal number of nights with each parent during the Term 1 school holiday period, then the second half of the school holiday period will conclude at 12:00 noon on the day prior to the first day of Term 2.
It should also be noted that whilst direct objection was not taken to it, proposed order 4.4.3 in relation to the long summer school holiday is drafted to the same effect, as below:
Notwithstanding orders 4.4.1 and 4.4.2 hereof, where the children are unable to spend an equal number of nights with each parent during the Term 1 school holiday period, then the second half of the school holiday period will conclude at 12:00 noon on the day prior to the first day of Term 1.
The mother suggested that such a provision introduced unnecessary complexity, and that an order modelled upon her proposed order 3.3.1(b) (in relation to time spent in term three school holidays) of her minute of orders sought was preferable, as below:
for the second half in 2019 and in each alternate year thereafter commencing from 12.00pm on the date which is the midpoint of the school holiday period (in the event that there are two middle days on the earlier of those two days) until the commencement of school on the first day of Term 2.
The parties were also in dispute regarding special days. The ICL sought that the orders that provide for special days should continue, as did the father. The mother opposed it, saying that there should be no special arrangement on the basis that the parties’ difficulties in cooperation meant that the frequent changeovers that would be occasioned by these orders would be problematic. There is a grouping of special days, by virtue of the father’s birthday and children’s birthdays that fall in close proximity during September. While she thought that in an “ideal world” each party would spend time with each child on the special days, the frequency of the times they spend with each parent means that they will see the other parent shortly after the day in any event.

Agreed matters

Despite the parties’ competing applications, the following matters, taken from the orders each sought, have been agreed between them, either at the outset of the hearing or during the giving of evidence within the hearing.
1.That J, aged 16, will live with the father and live with the mother in accordance with his wishes.
2.That during school holiday periods, Q, aged 14, N, aged 12, and O, aged 10, will live with the father and the mother as follows:
2.1For one half of the first school term holidays:
2.1.1With the wife:
2.1.1.1For the first half in 2018 and in each alternate year thereafter commencing from the conclusion of school on the last day of Term 1 until 12 noon on the day which is the midpoint of the school holiday period;
2.1.1.2For the second half in 2019 and in each alternate year thereafter commencing from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 2.
2.1.2With the husband:
2.1.2.1For the second half in 2018 and in each alternate year thereafter commencing from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 2;
2.1.2.2For the first half in 2019 and in each alternate year thereafter commencing from the conclusion of school on the last day of Term 1 until 12 noon on the day which is the midpoint of the school holiday period.
2.2During the entirety of the second term school holiday period commencing from the conclusion of school on the last day of Term 2 until the commencement of school on the first day of Term 3;
2.2.1With the wife in 2018 and each alternate year thereafter;
2.2.2With the husband in 2019 and each alternate year thereafter;
2.3During the entirety of the third term school holiday period commencing from the conclusion of school on the last day of Term 3 until the commencement of school on the first day of Term 4;
2.3.1With the husband in 2018 and each alternate year thereafter;
2.3.2With the wife in 2019 and each alternate year thereafter;
2.4For one half of the long summer school holiday period:
2.4.1With the husband:
2.4.1.1For the first half in 2017/18 and each alternate year thereafter, from the conclusion of school on the last day of Term 4 until 12 noon on the day which is the midpoint of the second holiday period;
2.4.1.2For the second half in 2018/19 and in each alternate year thereafter, from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 1;
2.4.2With the wife:
2.4.2.1For the second half in 2017/18 and in each alternate year thereafter, from 12 noon on the day which is the midpoint of the school holiday period until the commencement of school on the first day of Term 1;
2.4.2.2For the first half in 2018/19 and each alternate year thereafter, from the conclusion of school on the last day of Term 4 until 12 noon on the day which is the midpoint of the second holiday period;
3.While the children are in their respective care, each of the husband and the wife do all things to facilitate reasonable communication between the children and the parent with whom they are not spending time with via telephone, messaging or other electronic means as initiated by any of the children or the parent.
4.Unless otherwise agreed, changeovers occur:
4.1At the children’s respective schools during school term;
4.2If not at school, by the parent (or their nominee) whose time is commencing, collecting the children from the home of the other parent and returning them to the home of the other parent at the conclusion thereof.
5.Each parent be at liberty, during their scheduled time with the children in school holiday periods, to travel overseas with them, subject to the following conditions (unless otherwise agreed in writing):
5.1The parent who intends to travel with the children (“the travelling parent”) provide to the other parent copies of itineraries and accommodation bookings no less than 30 days prior to the departure date (or such shorter date as may be agreed between the parents);
5.2The travelling parent not be permitted to travel with children (save while in transit) to any location designated by the Department of Foreign Affairs and Trade as “do not travel”; and
5.3The travelling parent ensure the children are able to communicate with the other parent via telephone, electronic messaging or video calls during the period of such travel, provided there is serve available for them to do so.
6.Each party inform the other parent:
6.1of their current address, mobile telephone number and email address within 7 days of changes to any of these, including contact details for any holidays;
6.2via telephone as soon as is reasonably practicable in the event any of the children become seriously ill or sustain a serious injury requiring medical attention while the children are in that party’s care;
6.3as to any consultation with a medical practitioner or health professional and treatment prescribed within 24 hours of such consultation;
6.4as to the names and contact details of all medical practitioners and health professionals treating or consulting any of the children from time to time.
7.The Independent Children’s Lawyer be discharged.
8.The passports for J, Q, N, and O by held by the Registrar of this Court and released to either the husband or the wife from time to time in accordance with written instructions signed by the husband and the wife.
9.At the conclusion of travel with the children by the travelling parent, the travelling parent forthwith return the children’s passports to the Registrar of the Family Court of Australia at Melbourne to be held in accordance with Order 8 hereof.
10.Each parent in a timely manner do all things and sign all documents as may be required to apply for, maintain and renew the children’s Australian passports, the costs of which are to be borne by the husband.

The evidence

In accordance with the reasonably narrow area of dispute between the parties, cross-examination was on a reasonably limited range of matters. Loosely described, the bulk of the matters the subject of cross-examination relate to the inability of the parties to cooperate and co-parent. They have a difficult relationship.
The manner of the parties’ separation around Christmas 2015 was canvassed. There was then a period of time when the mother had extremely limited time with the children. During this time they lived with the father.
In her trial affidavit at [149] the mother expressed her regret as to her previous use of illicit substances, and her acknowledgement that the use was “a significant factor in the restrictive manner in which the boys and I… were able to spend time together between separation and 18 March 2016”. When asked about this period under cross-examination, the mother initially contradicted this. When [149] was brought to her attention she then accepted that [149] constituted the truth about the matter.
In March 2016, a little over two months after the separation of the parties, the mother obtained an intervention order against the father. While she asserted that she had sought and obtained an intervention order only in respect of herself, rather than in respect of the children, the intervention order that was issued covered the mother and all four of the boys who were, at that stage, living with the father. The mother asserts that this outcome was an error on the part of the court staff who prepared the order. Against this notion, at exhibit H2, the applications for intervention orders were tendered. This included an application, signed by the mother, not only for herself but also for the four boys. In this context it is difficult to accept that the mother had only sought an application in respect of herself. However, in support of her position, she tended at exhibit W3 records from the school attended by the youngest of the boys. Those records disclose her telling the principal of the school that she had obtained an order but it was only in respect of herself rather than also being in respect of the boys. A later record shows the mother telling the school that the order covered the boys as well as herself. The date of the application for the intervention order was 9 March 2016, the date of her first conversation with the school was 7 March 2016, the date of the issue of the intervention orders was 10 March 2017 and the date of the second conversation with the school was 11 March 2017.
This was said to evidence an undermining of the relationship between the father and the boys by the mother. The impression that the mother had used the IVO proceedings with the objective of undermining the father’s relationship with the boys is reinforced by the text that the mother agreed that she had sent to the father on 11 March 2016 stating
You fucked with the wrong bitch. If you think I was ever going to let you have them for good you really are as stupid as I always thought…
The significance of this matter is that it indicates that, despite the fact the boys had been living with their father for two and a half months since the date of separation, on a basis that saw them having little time with their mother, and under circumstances where the mother’s position is that the boys are both safe with the father and he is an adequate parent, her obtaining of the intervention order against the husband in respect of the boys was a move to undermine the parenting of the father, notwithstanding the adverse impact that it might have had on the boys.
The father was subsequently served with the IVO. The mother attended at the father’s home accompanied by security guards that she had engaged and members of the Victorian police force. The father had, by this stage, arranged for his father to look after the boys given that the terms of the order meant that he could not be with them, despite the fact that they were living with him. As a part of this attendance by the police, the police spoke with one of the boys, N, to see if he would leave with his mother at that point. N refused to do so and the police advised the mother that they were unable to take any further step in respect of the matter.
Orders were subsequently entered into on 18 March 2016 that provided for the boys to be returned to the father, but also to have time with their mother. The father asserted in his affidavit in reply at [138] that the mother had been non-compliant with Orders relating to the use of a nanny. Previous Orders had provided that the father was obliged to fund a nanny being available for the period of time that the children were with the mother. After a reasonably short period of time, the mother no longer made use of the nanny. The father asserted that this was a breach of her obligations under the Order but conceded under cross-examination that was not in fact the case. He had an obligation to provide the nanny, the mother had no obligation to use the nanny. He put this down to a misunderstanding of the Orders on his part. He accepted that this had come from a different reading, as between the parties, as to the effect of the Orders. This was a matter suggested to evidence the difficulties the father poses for the mother in their interaction as parents.
In January 2017 the father gave to the mother’s father a copy of the report prepared by the psychiatrist in this matter, Dr F. The father accepted that it was inappropriate for him to do this, explaining that he felt that the mother’s father would want to look at the report. He did not consider that he needed to apologise to the mother for having taken this step that he himself regarded as inappropriate.
At [139] of her affidavit the mother outlines some of the circumstances regarding a trip made by the father, without the children, overseas in about July 2017. The mother raised with the father’s solicitors the question of who was looking after J during this time, receiving a response that set out the lack of any obligation to advise her on the basis that it did not impact on time that she might spend with J. This appeared to be cited as an example of the father’s failure to communicate and at face value presented a reasonably high-handed approach to the mother in relation this matter.
It was suggested to the mother that, on finding out that the father had travelled overseas without telling her, she was annoyed. She accepted that she wanted to have contact details for the father in case something happened in relation to the children. She was asked whether or not she had made further enquiries about the father’s trip overseas. Her response that she had not personally made any. She gave the example that she had not rung Flight Centre. She then disclosed that a person who is engaged by her on contract for what she described as ongoing litigation support, Mr LL, made steps to find out when the father was travelling overseas. Mr LL, an ex-Australian Federal Police officer, had initially had dealings with the mother shortly after separation when she engaged an agency on the recommendation of her lawyers in 2016 as she was not feeling safe. Since then he has installed security at her home, removed spyware and bugs, provided some form of counselling and performed a mentor and friendship role. Parts of Mr LL’s duties have involved him keeping a running record of matters relevant to the potential hearing of the case.
The mother’s initial evidence was that she had not instructed Mr LL to find out the flight details for the father for when he was leaving for overseas. She said she mentioned the matter to Mr LL around the time when J told the mother that the father was travelling overseas. Mr LL told her that the father was on a midday flight. He had contact with an associate who, it so happened, was also at the airport. That associate took a photograph of the husband and it was sent to the mother. She said she had not asked Mr LL to do this, and initially said that it was done by the associate. The photo, she said, was of the father holding a passport. It indicated the time of the flight and who he was travelling with. The mother said that when she got the photo she was concerned because she understood that there were orders that prohibited both her and the husband from engaging in surveillance of the other. The mother then stated that Mr LL had engaged in his own frolic. She “had a go” at him and told him “don’t do it”. She said that she had not asked Mr LL to make any enquiries, but that he did so without being asked.
The mother says there was no other discussion with Mr LL about the travel for the father. She said that she did not know that Mr LL would be going to the airport. This was in apparent contradiction of her earlier evidence that Mr LL had not gone to the airport. The mother subsequently accepted that she had asked Mr LL to make enquiries. She said she just wanted to know if the father was going overseas for the sake of the children. She said that she asked Mr LL to find out when the father was going overseas.
The mother was asked whether she understood that if she had engaged Mr LL to obtain the flight details, or have the photograph of the father taken, that she would be in breach of Order 8 made on 18 March 2016 which is as follows:
8.Forthwith upon the Interim Intervention Order made by the Magistrates’ Court of Victoria on … 2016 in Case … ceasing to be in effect, the husband and wife each, by themselves and/or their agents, be, and are hereby, restrained by injunction from:
8.1committing family violence against the other (“family violence” to be interpreted as broadly as possible within the definitions thereof contained in the Family Law Act 1975 (Cth) and the Family Violence Protection Act 2008 (Vic)); and
8.2attempting to locate the other, follow the other, or keep the other under surveillance.
She accepted that if Mr LL was instructed to do those things by her that it would be a breach of the injunction of 18 March 2016. She accepted that Mr LL had attempted to locate the father and then said she did not realise that it was a breach of the order to ask about the father’s travel.
It is difficult to accept at face value the mother’s assertions that Mr LL, whose litigation support role involved keeping a running list of matters that might be relevant for the trial, who provided the mother with some form of security assistance, and who had become something of a confidant for the mother, conducted those enquiries as to the father’s travel on a frolic. In any event, the mother’s inconsistency and answers as to whether or not she had asked him to do so, transitioning from a denial that she had asked Mr LL to find out details, to an acceptance that she asked Mr LL to find out about the flight that the father was travelling on, means that it should not be regarded as Mr LL’s independent frolic. It is also likely to be a breach of the obligations placed upon the mother in respect of the injunction of 18 March 2016.
The mother’s evidence on these matters indicates a risk that she may change her evidence according to the needs of the case, or the case as she perceives it. Where her evidence is under challenge this gives reason to be cautious before accepting it.
The incident also indicates that I should have some caution before accepting that the mother will comply with the obligations placed upon her by orders of this Court.
This incident also raises concerns around the mother’s attitude towards the father. The mother has previously told Dr F that the father was out to destroy her relationship with the children. She says that she no longer holds that view. She says that she has lost the animosity that she previously held toward the father by virtue of counselling that she has undertaken. However, this incident reinforces the underlying negative attitude that the mother holds towards the father, demonstrating the lengths that she is prepared to go to, being the conduct of surveillance in the face of orders prohibiting such conduct, in furtherance of this underlying negative attitude.
A further example of the parties’ conflict with each other can be seen in arrangements for N’s confirmation in about August 2017. The day scheduled for the confirmation was a day N was to spend with the father. Despite this the mother organised social engagements, being a meal with another family from the parish and with her father who she had arranged to be the sponsor. The father subsequently changed the arrangements, including the sponsor, so that it would be one of N’s brothers who would act as sponsor rather than the maternal grandfather. The explanation he gave to the mother was that he required confirmation that the maternal grandfather was actually able to be the confirmation sponsor for N.
The parties have also had conflict over international travel arranged by the mother. The mother arranged a trip overseas to commence during the time that the children were scheduled to spend time with their father. She says that when she booked the flights she did not recognise that there was such a clash. On recognising that it was such a clash she contacted the father to see if he would give permission for the children to travel during his time. He declined that position, making his own enquiries as to what other flights might be available for the mother to use that would fall within her own time. Consequently the mother was required to re-book travel at some financial loss.
A further incident between the parties occurred in September 2017. In accordance with Orders made on 9 March 2017 the father was entitled to spend time with the children on his birthday. In accordance with those Orders the mother contacted the father querying the collection point, whether it would be at Suburb MM or at Suburb H. The mother was then at Suburb MM, the father lived at Suburb H. The two places are about one to one and a half hours drive apart. The mother was entitled to make this query as the changeover point provided that by agreement they could vary the arrangements. The father’s response to the mother was high-handed and aggressive. She confirmed the time for the changeover to occur on the following Saturday. The father did not attend at the changeover point in Suburb H due, he says, to a diary error on his part. The mother contacted him to enquire as to where he was after he had not arrived to collect the children 40 minutes after the allocated changeover time and was met with further aggressive and condescending messaging from the father. The father accepted that his response to the mother was both rude and condescending, that he was effectively asserting that she was doing something outside of the Orders and that his response to her was utterly unjustified.
One of the matters previously in contention between the parties related to the school that Q would be attending in 2018. He had been attending a school called OO School, a school previously attended by J. J had subsequently transferred to a different school, NN School, and Q and his father had spoken about Q transferring, so that he was also at that school. The mother says that this should not have occurred without the parent’s jointly dealing with the matter. The parents have now agreed that NN School is the school that Q should attend. The mother’s view is that OO School is still the more appropriate school for Q. She has continued to discuss this matter with Q, that is, as to whether or not a change in the school is the best choice to be made. She accepts that Q’s view about the matter should prevail. There was implied criticism of the mother for continuing to discuss this matter with Q. It seems, however, that discussion with a child as to whether or not his change of school is a good idea is a reasonable matter for a parent to take up with a child. It does not, of itself, indicate that the nature of the conversations was inappropriate or undermining of the father’s position. Each of the parents, with their equal shared parental responsibility, has a role in the decision-making in relation to the school and it is open for each of the parents to discuss with the children what schools they should attend.
The mother was critical of the father in relation to arrangements for the children to attend counselling with Mr PP. Her view was the father had delayed and obstructed the counselling, which she thought was very important for the children to attend. However, at the same time, she conceded that she had had almost no contact with Mr PP herself.
An additional matter is that the mother has re-partnered and is pregnant. The pregnancy came to the attention of the boys through an anonymous note sent to the father. He said that the boys were with him when he opened the note. The pregnancy apparently caused some upset to one of the boys. It will certainly cause change. There is insufficient evidence to suggest that the change will be negative to the boys. Shortly they will have another sibling who will live solely in the mother’s household.
It may be accepted that there is little prospect that the parents will be able to interact regarding the boys. They have behaved in an aggressive fashion toward each other. The father has been unreasonable in his criticism of the mother. The mother has flouted court orders regarding surveillance of the father and used the IVO process in a way that was inconsistent with the best interests of the children.
Despite these matters they have managed to ultimately agree in relation to schooling for Q.

Single Expert

Ms QQ, psychologist, was appointed as the single expert in this matter. Her views as to the parties’ proposals were reasonably neutral.[1] She had no strong inclination either way, although a slight inclination toward the 8:6 arrangement. Her view is that each parent is capable of caring for the children on an equal basis. She thought that there is no difference, neither in respect of their parenting capacity nor in terms of the relationships, between the children and each of the parents. Both the 8:6 arrangement proposed by the father and the 7:7 arrangement proposed by the mother would be an appropriate arrangements for the boys. She said they have a strong, reliable relationship with each of their parents despite the difficulties between the parents. She described that a particular strength of the boys is that they function as a solid block of four.
[1] Report of Ms QQ dated 4 July 2017 at [199], [204].
Ms QQ interviewed each of the boys. She found that the mother’s assertions that J is afraid of his father were not borne out. Rather, J was assessed as being angry with his mother. This is reflective of the limited time he spends with the mother.
The mother’s case is that, despite J being at liberty to determine when he will live with the mother and when he will live with the father, that she is seeing improvements in her relationship with J. While she had previously asserted that J had stayed overnight with her on four occasions this year she qualified her evidence to say that she thought that it was on three occasions. She accepted that she had, earlier in the separation, spoken to J about the father suggesting that the father was poisoning J against her. She denied recalling whether she had spoken to J about her view that she had been drugged in relation to the incident at the point of the parties’ separation. She could not recall speaking to J about the suggestion that the father did not want to have O. She accepted that when J had spoken to her about what had happened between her and the father in their relationship that she had told J that it was a loveless, sexless and unhappy relationship in which she was emotionally bullied.
The child Q was presented as being neither aligned with the father, nor critical of the mother. This represented a change since the previous assessment by Mr E. He was even handed and loyal to both of his parents. No particular view was expressed by Q to the single expert.

However, the mother said under cross-examination that Q told her that he wants an 8:6 arrangement, to spend eight nights each fortnight with his father. This is a view that she said she respected and, under cross-examination, said was the order she seeks for Q. In contrast, in final submissions the position put by the mother was that the arrangement with Q should be 7:7 despite the evidence given by her.
The mother agreed that Q is getting to the age where he will want to work out his own arrangements and is testing boundaries. She thought that there should be orders that dictate where Q will live. In the context of such a regime she thought that it was appropriate that the parents should accord to Q flexibility in his conduct across the weekend periods despite the presence of Court orders.
The Child N said to Ms QQ that he would prefer the arrangement to be 7:7 as he misses each parent and it would be an equal amount of time. It was clear that he also misses J when he is not with him. He said that he did not know what his father wanted, but knew that his mother wanted 7:7. This view was assessed as being influenced by the mother. He was assessed as too young “to have the cognitive ability …to understand the dynamics of the family functioning.” He would benefit from a “reliable, structured routine.”
Ms QQ reported that O expressed that he understood the current eight nights with the father, six nights with the mother regime. He said that he wants it to stay the same. When with the father he misses the mother and … (the dog). When with the mother he misses the father and J.
Ms QQ identified two benefits to the 8:6 proposal by the father. Firstly, it is an arrangement that the three younger children are settled in and used to. However, the move the 7:7 would not be a significant disruption, and one that the boys would settle into. Secondly, with J living with the father and spending sporadic time with the mother, there was greater scope to keep the four as a solid block, the sibling block being a matter of importance. It ought to be noted that there is no particular guarantee that the younger three spending an extra night in the father’s household would equate to an extra night with J. Much will depend upon J’s activities.
In favour of the mother’s 7:7 proposal, Ms QQ thought that such an arrangement may combat a message that the mother lacks capability. Against this, however, was her assessment that “the children do not perceive one parent to be more capable than the other or more right than the other….they are loyal to both parents and feel loved by both parents.”[2]
[2] Report of Ms QQ dated 4 July 2017 at [197].

Discussion

The paramount consideration in determining what order should be made is, pursuant to s60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, but in accordance with the objects set out in s 60B and the reasoning process set out at s 65DAA.
In this case the parents have agreed that there should be equal shared parental responsibility between them. They obtained a final order to this effect by consent on 18 March 2016.
This requires the Court, pursuant to s 65DAA, to consider whether equal time is in the children’s best interests, is reasonably practicable and, if so, to consider making such an order. This process of consideration is what Boland J described in Morgan v Miles[3] as “the careful exercise of a structured discretion to determine the appropriate order to be made”.
[3] (2007) FLC 93-343.
It may readily be seen that such an order is reasonably practicable, given the scope of the dispute between the parties. By their positions, an 8:6 split must be implicitly conceded as reasonably practicable. There is no difference in terms of reasonable practicability identified in this case between 8:6 and 7:7.
Best interests are to be determined by a consideration of the matters contained at s 60CC. The objects, as set out at s 60B, set out the manner of ensuring that the best interests determined under s 60CC are met.
Of the matters contained at s 60CC, by their opposing applications, both parents accept that it is in the children’s best interests to have meaningful relationship with the other parent by virtue of the benefits that will flow from that relationship. On either party’s case, the children will have meaningful relationship with the other parent.
Neither says that there is a need to protect the children in relation to abuse, neglect or family violence.
The weight to be placed on the views of the children varies. N’s and O’s ages and manner of expression, in differentiating between 7:7 and 8:6, do not display either a cogency of understanding of the implications, or lack thereof, to accord weight to their views. Q, by the mother’s concession, holds a view that the arrangement ought to be 8:6 that ought be respected. He is now 14 years old and of an age where both parents say that he ought to be accorded flexibility. Their acknowledgement of his developing autonomy is reflected in the mother’s position, and in her evidence, of the need to comply with his expressed view.
The nature of the relationships between the children and each of their parents has been assessed by Ms QQ as not of a nature to allow distinction. They have strong, reliable relationships with each parent. The competing positions of the parties are a tacit recognition of the equivalence of the relationships.
The nature of the relationships between the children is an important feature of this case. According to Ms QQ, they constitute a “solid block of four.” Her view was that the youngest three should not have differing regimes governing their time. They should move between the households as a group.
To the extent that the extended families are of importance, those relationships are able to be adequately supported whichever proposal is adopted.
There is no significant distinction between the parents in terms of their participation in decision making, spending time with, communicating with or supporting of the children.
A move to a 7:7 arrangement, if such a change were to occur, would be a relatively minor change to which the children would, in all likelihood, adapt. The change would not involve any significant change in the degree of separation from persons of importance to each of the children.
The practical difficulty experienced by the children in spending time with or communicating with each parent can only flow from inter-parental hostility and inability to communicate. However, given the strong bonds each child has with each parent that hostility has not proven to be a significant impediment. To the degree to which it constitutes an impediment, there is no significant difference between a 7:7 and 8:6 arrangements as to the effect of it.
While there may have once been questions raised as to differential capacity of the parents to provide emotionally for the children, particularly in the immediate aftermath of separation, the current assessment by Ms QQ is that there is no distinction in capacity. Again, this position is supported by the parties’ positions. While it may be the case that a parent might regard that parent’s capacity as superior, they are unable to be distinguished at present.
The characteristics of the children have been addressed to the extent necessary in dealing with the views of the children.
The attitudes to the children and the responsibilities of parenthood may best be seen in the inter-parental relationships, and the conduct of each toward the other. The mother’s actions in respect of the IVO, in including the children on the IVO despite the fact they were living with the father, detracts from her commitment to the responsibilities of parenthood in supporting the relationship of the children with the father, and in shielding the children from the inter-parental conflict. However, this matter, occurring shortly post-separation, does not continue to hold significance as to illustrating the current commitment to the responsibilities of parenthood, particularly given the change in view expressed by the mother, that she no longer regards the father as undermining her relationships with the children. The current attitude to those responsibilities is best seen in the fact that, under a situation of shared time, the relationships between each parent and the three youngest children are strong. It appears that despite the hostility between the parents they have not undermined each other.
The parties did not conduct the matter on the basis that family violence is an issue. While a family violence order, obtained ex parte, has previously applied, no party suggested it had current significance for the dispute.
It is not possible to determine what form of order is least likely to lead to the institution of further proceedings.
The key characteristics of orders made in the best interests of the three youngest children are that the three move between their households together as a block, and that the views of Q are given sufficient weight. If they are to move as a block, it is the views of Q that are pivotal in determining whether equal time is in the children’s best interests. What gives cogency to those views is the concession made by the mother in her evidence as to the content of the views and the need for them to shape the order in respect of Q. While it does not reflect her position in submissions, the concession means that it may be safely concluded, in a case held in fine balance, that Q’s best interests are met by an 8:6 order. For the youngest two, there is almost nothing to distinguish as to what is in their best interests between the two proposals. There is, however, strong reason to say that their interests are in moving households with Q. Such an outcome will ensure that, in accordance with the objects, the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests.
The remaining issues concern provisions in relation to special occasions and machinery provisions for school holidays. Again, these matters are finely balanced. While the mother says that in an “ideal world” the children would spend time with each parent on each special occasion, the difficulties between the parents mean that this is not ideal. Where the parents struggle to communicate, and where there have been accusations of breach of the orders made against the mother on the basis of a misunderstanding of the orders on the part of the father, the removal of a significant number of variations from the normal pattern decreases the opportunity for further misunderstandings between the parents. This is in the children’s best interests, in a context where shortly after or before each special event the children will spend time with the other parent in any event, as the decrease of potential for misunderstandings outweighs the benefits of seeing each parent on the special occasions.
Of course, the parents will be at liberty to agree to do otherwise.
In relation to the machinery provision in respect of the school holidays, the father’s proposed mechanism results in extra non-school based handovers and, in order to avoid this, the mother’s proposed mechanism will be adopted.
Again, the parties may agree to alternative arrangements.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 December 2017.

Associate:

Date: 15 December 2017.

[2017] FamCA 1025

15 December 2017

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